The wealthy speculators and slave owners who founded our republic had little faith in popular democracy. The specter of a tyrannical majority using its power over the state to infringe on individual liberty (i.e. their property rights) haunted their collective imagination. To keep that hypothetical thieving mob at bay, they designed a system of government chock-full of veto points — which is to say, opportunities for powerful minorities to kill popular reforms.
To become a law, bills would need to make it through the committee systems of not one but two legislatures, past an independently elected president, and then (after Marbury v. Madison) survive the withering scrutiny of judicial review (and in many cases, the modifications of state-level officeholders). By modern standards, this system was exceptionally small-c conservative. Virtually no contemporary democracy makes it anywhere near as difficult for elected majorities to govern as the early American republic did.
And yet, even the men who designed this system could not condone the modern Senate filibuster. The framers explicitly debated whether legislation should be subjected to any kind of supermajority requirement in the Senate — and they affirmatively decided against it.
And then, the upper chamber accidently created a loophole that allowed any individual senator to prolong debate indefinitely. Eventually, a supermajority threshold was established for closing that loophole, and, as American politics polarized, exceeding that threshold became a requirement for passing any major law. Now, America’s legislative system isn’t just unwieldy and conservative by 21st-century international standards, but also, by 18th-century American ones.
Many of the most “progressive” Democrats in the Senate wish to keep it that way.
“We should not be doing anything to mess with the strength of the filibuster,” New Jersey senator (and 2020 presidential candidate) Cory Booker told Politico this week. “It’s one of the distinguishing factors of this body. And I think it is good to have the power of the filibuster.”
Senators Mazie Hirono, Kirsten Gillibrand, and Chuck Schumer all said versions of the same. None of Team Blue’s presidential candidates have called on their party to abolish the filibuster the next time it gains a Senate majority — although Elizabeth Warren and Bernie Sanders have both indicated that they would be open to such a gambit.
Debates over Senate procedure do not typically figure into presidential primary campaigns. But the combination of the Senate’s historic bias toward Republicans — and the Democratic Party’s increasingly ambitious policy ideas — has led progressive activist groups to adopt filibuster reform as a prominent demand.
At present, the average state is about 6 percentage points more Republican than the nation as a whole. And given current demographic trends, small states with overwhelmingly white, non-college-educated populations appear likely to grow both more overrepresented in the upper chamber and more Republican in the coming years. Right now, Democrats have 47 Senate seats, and a reasonable chance of regaining a narrow majority in 2020 or 2022. But the party’s chances of gaining 60 votes in the medium-term future are nil. Which means that, absent the legislative filibuster’s (de facto or de jure) destruction, the party’s prospects for passing Medicare for All, a Green New Deal — or voting-rights legislation strong enough to combat the GOP’s voter-suppression efforts at the state level — are bleak.
Arguments for preserving the filibuster come in two flavors: misguided and bad. In the first category, there’s the notion that, given the radicalism of the modern Republican Party, and the fact that the Senate’s biases make it fairly easy for the GOP to assemble a 51-vote majority, Democrats should safeguard minority power in that chamber, even at a cost to the progressive agenda.
There are two problems with this line of reasoning. One is that the filibuster isn’t actually an effective check against a truly radical majority party. Which is to say: It only takes 51 votes to abolish the legislative filibuster, and Senate Republicans would surely do so the moment they decided it was in their party’s interests (already, they have severely undermined the filibuster by bending the rules of budget reconciliation). Mitch McConnell has not left the legislative filibuster alone out of a faithful devotion to norms of bipartisan comity. He has done so because he recognizes that the filibuster is an inherently conservative institution; if you are the party that’s more skeptical of ambitious government programs, a rule that makes such programs nigh-impossible to pass is extremely valuable to your cause.
It is worth remembering that the filibuster did not save Obamacare — the profound unpopularity of the conservative vision for social welfare did. Even the modest “skinny repeal” bill could not garner 50 votes. And the same is true of Social Security, Medicare, and the other crown jewels of New Deal liberalism. Progressives don’t need supermajority requirements to protect most of their favorite programs because progressive policies aim to serve majoritarian interests, and thus, tend to attract majoritarian support once implemented. By contrast, conservatives do need supermajority requirements to protect against progressive advances, because conservatives aim to serve a plutocratic minority that has had (relatively) little luck in rolling back universal social welfare programs once they’ve been enacted.
Separately, there is the simple fact that we do not have the luxury of passing no major legislation for the next decade. A deepening ecological crisis will (almost certainly) be humanity’s central challenge for the rest of our lives. We have a short window of time to take actions that will keep that crisis in the category of “not quite catastrophic.” And there is no sign that a critical mass of Republican senators will be willing to back the kinds of “big government” interventions necessary for mitigating climate change before it’s too late.
Meanwhile, as indicated above, the Republican Party is actively fomenting a democratic crisis in states across the country, as it seeks to protect its fragile majorities from demographic changes that undermine their popular support. If your central concern is restricting the power of a radical conservative movement, then you should demand that the next Democratic Senate majority abolish the filibuster, and pass a new voting rights act on a party-line basis. From there, that majority could proceed to approve D.C. and Puerto Rican statehood (if the Puerto Rican people are so willing), thereby reducing the GOP’s structural advantage in the Senate.
The bad argument for the preserving the filibuster is the one Cory Booker made: That it is a good institution on the merits, as it forces bipartisan compromise and protects “minority rights.” This is an obscene stance for anyone who claims to believe in the American people’s capacity for self-government — or the public sector’s capacity for advancing the collective good — to take. At present, the 26 smallest states are home to roughly 17 percent of the U.S. population. Which is to say: The filibuster allows lawmakers elected by less than 17 percent of voters to exercise veto power over any and all laws. This is a monstrously anti-democratic institution with no parallel in any other advanced democracy.
And while the filibuster has protected the rights of minority coalitions in the Senate, this has often come at the cost of protecting the human rights of minority populations. In the 20th century, the filibuster enabled southern segregationists to block anti-lynching laws and delay civil-rights legislation. This millenium, it enabled to nativists to block a pathway to citizenship for Dreamers.
If the Democratic Party’s Senate majority had abolished the legislative filibuster in 2009, it could have conceivably passed a larger stimulus, card check for unions, a public health-insurance option, cap and trade, and a pathway to citizenship for all 11 million undocumented immigrants on a party-line vote. Such legislation would not merely have hastened the onset of the economic recovery, bolstered the labor movement, lowered the uninsured rate, reduced carbon emissions, and spared 11 million vulnerable immigrants from the nightmare of Trump’s radical enforcement regime. It would also have quite likely prevented Trump’s election; add a few million more immigrants to the electorate — and a couple percentage points to the rate of private-sector unionization — and you end up with a country that is both more democratic and more Democratic.
If the erosion of vital democratic norms brought our republic to its present crisis, the faithful observation of anti-democratic norms did, too. If the next unified Democratic government doesn’t learn from this history, they may very well make us all repeat it.